Citation Nr: 0517124
Decision Date: 06/23/05 Archive Date: 07/07/05
DOCKET NO. 04-03 343A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUES
1. Entitlement to service connection for hearing loss in the
right ear.
2. Entitlement to an initial compensable rating for hearing
loss in the left ear.
ATTORNEY FOR THE BOARD
Sonia Shah, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1976 to May
2002.
These matters come before the Board of Veterans' Appeals
(Board) on appeal of an August 2003 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO).
In that decision the RO denied service connection for hearing
loss in the right ear and granted service connection for
hearing loss in the left ear, assigning a non-compensable
(zero percent) rating. The veteran perfected an appeal of
both issues.
FINDINGS OF FACT
1. All relevant available evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO and the duty to notify has been satisfied.
2. The preponderance of the evidence reveals that the
veteran does not currently suffer from a hearing loss
disability in the right ear as defined by law.
3. The veteran's service-connected hearing loss in the left
ear is manifested, at worst, by Level I hearing impairment.
CONCLUSIONS OF LAW
1. The criteria for service connection for hearing loss of
the right ear have not been met. 38 U.S.C.A. §§ 1110, 1112,
1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.159, 3.303, 3.307, 3.309, 3.385 (2002).
2. The criteria for a compensable disability rating for
hearing loss in the left ear have not been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159,
4.1, 4.7, 4.85, Diagnostic Code 6100 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Development of the Claim
The Board has considered VA's duty to inform the veteran of
the evidence needed to substantiate his claim and to assist
him in obtaining the relevant evidence and finds that current
provisions of the laws and regulations pertaining to those
duties apply to the veteran's claim. See, in general, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). The Board further finds that
development of the issues addressed in this decision has
proceeded in accordance with the law and regulations. 38
U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.
On receipt of a claim for benefits VA will notify the veteran
of the evidence that is
necessary to substantiate the claim. VA will also inform the
veteran which information and evidence, if any, that he is to
provide and which information and evidence, if any, VA will
attempt to obtain on his behalf. Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002), 38 C.F.R. § 3.159.
In Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004), the
United States Court of Appeals for Veterans Claims
(hereinafter, "the Court") held, in part, that a VCAA
notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable
decision on a claim for VA benefits by the agency of original
jurisdiction (in this case, the RO). The Court also held,
however, that providing the VCAA notice to the claimant after
the initial decision could satisfy the requirements of the
VCAA if the timing of the notice was not prejudicial to the
claimant. Pelegrini, 18 Vet. App. at 121.
In this case, the issue of the evaluation assigned to the
veteran's service-connected hearing loss in the left ear was
first raised in his notice of disagreement. VA's General
Counsel has held that when VA receives a notice of
disagreement that raises a new issue, 38 U.S.C.A. § 7105(d)
requires VA to take proper action and issue a statement of
the case if the disagreement is not resolved, but
section 5103(a) does not require VA to provide notice of the
information and evidence necessary to substantiate the newly
raised issue, if VA has already given the section 5103(a)
notice regarding the original claim. VAOPGCPREC 8-03.
Precedential opinions of VA's General Counsel are binding on
the Board. See 38 U.S.C.A. § 7104(c) (West 2002); Splane v.
West, 216 F.3d 1058 (Fed. Cir. 2000); 38 C.F.R. § 19.5
(2003).
In the instant appeal, the RO notified the veteran of the
evidence required to substantiate his claim for service
connection for bilateral hearing loss in April 2003, prior to
the rating decision on appeal. The RO also informed him of
the information and evidence that he was required to submit,
the evidence that the RO would obtain on his behalf, and the
need to advise VA of or submit any evidence relevant to the
claim.
In addition, he was provided with a copy of the appealed
rating decision and statement of the case. In these
documents the RO informed him of the specific rating criteria
pertaining to the evaluation of hearing loss, as well as the
reasons for determining that the criteria for a compensable
rating was not met. In these documents the RO also informed
him of the cumulative evidence previously provided to VA or
obtained by VA on the veteran's behalf. The Board finds that
all of these documents informed the veteran of the evidence
needed to establish entitlement to a compensable rating.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error).
In general, the statute and regulation also provide that VA
will make reasonable efforts to help the veteran obtain
evidence necessary to substantiate the claim, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim.
Here, the evidence associated with the veteran's claims file
includes his service medical records and VA examination
reports. The veteran has not alluded to the existence of any
other evidence that is relevant to his claim. The Board
concludes that all relevant data has been obtained for
determining the merits of his claim and that no reasonable
possibility exists that any further assistance would aid him
in substantiating his claim. See 38 U.S.C.A. § 5103A; Wensch
v. Principi, 15 Vet. App. 362, 368; 38 C.F.R. §3.159(c).
Factual Background
The veteran's hearing in the right ear was noted as within
normal limits on his entrance examination in June 1975. From
June 1975 to May 2002, the veteran's hearing profile was H-1
as indicated on his September 1980, September 1983, November
1989, March 1994, and February 2000 audiological evaluations.
The "PULHES" profile reflects the overall physical and
psychiatric condition of an individual on a scale of 1 (high
level of fitness) to 4 (a medical condition or physical
defect which is below the level of medical fitness for
retention in the military service). The "H" reflects the
state of the "hearing and ear." See Odiorne v. Principi, 3
Vet. App. 456, 457 (1992). A July 2000 audiological
evaluation found that his hearing was within or at borderline
normal limits in the right ear.
The veteran's audiological separation examination in May 2002
found that the veteran had mild sensorineural hearing loss at
4000 hertz in the right ear and moderate high frequency
sensorineural hearing loss in the left ear at 3000 to 4000
hertz. Specifically, pure tone thresholds, in decibels, were
as follows:
HERTZ
500
1000
2000
3000
4000
6000
RIGHT
5
10
15
20
40
10
LEFT
10
15
25
55
50
0
Speech recognition scores in the left ear were 92 and 96
percent. No speech audiometry was provided for the right
ear. The examiner found that the veteran's hearing was
asymmetrically worse in the left ear. The veteran was
assigned an H-2 profile.
A VA examination was performed in May 2003. The veteran
reported decreased hearing in the left ear. He indicated
that he experienced occasional lightheadedness upon standing
and aural fullness in both ears. On the authorized
audiological
evaluation, pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
Average
RIGHT
15
15
20
25
35
24
LEFT
15
20
40
55
50
41
Speech audiometry revealed speech recognition ability of 96
percent in both ears. The examiner found that word
recognition in both ears was normal and impendance audiometry
was unremarkable, bilaterally.
For the right ear, the examiner found that the veteran's
hearing was within normal limits from 250 to 8000 hertz, with
the exception of mild sensoneural hearing loss at 4000 hertz.
For the left ear, the examiner found that veteran's hearing
was normal from 250 to 1000 hertz and 6000 to 8000 hertz.
The veteran had mild to moderate sensoneural hearing loss
from 1500 to 4000 hertz.
In a June 2003 addendum to the May 2003 VA examination, the
examiner indicated that she reviewed the veteran's claims
file. Upon review of the file, she found that the veteran's
hearing was within normal limits in both ears upon entrance
to the military in June 1975. The first indication of
hearing loss was documented in September 1980, which revealed
mild sensoneural hearing loss at 4000 hertz in the left ear.
Further in-service evaluations in September 1982, September
1983, November 1989, February 2000, July 2000, and May 2002,
revealed progressive high frequency hearing loss in the left
ear.
In the veteran's September 2003 notice of disagreement and
February 2004 substantive appeal, he reported being exposed
to firing ranges, vehicle noise, helicopters, and gunfire and
artillery simulators. He stated that the exposure to
excessive noise in the Army was a result of mandatory duty.
He stated that hearing loss was one of his major medical
complaints while in the Army.
Analysis
Service Connection
Service connection will be granted if it is shown that the
veteran has a disability resulting from an injury suffered or
disease contracted in the line of duty, or for aggravation of
a preexisting injury or disease contracted in the line of
duty, in active military, naval, or air service. See 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
In order to establish service connection for the claimed
disorder, there must be medical evidence of a current
disability; medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
Moreover, where a veteran served continuously for ninety (90)
days or more during a period of war, or during peacetime
service after December 31, 1946, and organic diseases of the
nervous system become manifest to a degree of 10 percent
within one year from date of termination of such service,
such disease shall be presumed to have been incurred in
service, even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2003).
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13
Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2003). When there
is an approximate balance of positive and negative evidence
regarding a material issue, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274
F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2003).
If the Board determines that the preponderance of the
evidence is against the claim, it has necessarily found that
the evidence is not in approximate balance, and the benefit
of the doubt rule is not applicable. Ortiz at 1365.
The veteran's service medical records indicate that his
hearing in the right ear was within normal limits until his
separation examination in May 2002, when he was diagnosed as
having a mild sensorineural hearing loss at 4000 hertz. In
this regard, the Board notes that the greatest decibel loss
shown on his separation examination was 40 decibels in the
right ear at 4000 hertz.
The RO provided the veteran a VA medical examination in May
2003. The examination included an audiological examination,
which revealed pure tone thresholds of 15 decibels at 500 to
1000 hertz, 20 decibels at 2000 hertz, 25 decibels at 3000
hertz, 35 decibels at 4000 hertz and a speech recognition
score of 96 percent for the right ear. Mild hearing loss was
noted at the 4000 hertz level in the right ear.
The question in this case is whether the veteran currently
suffers from a hearing loss disability such that service
connection can be established. For the purposes of applying
the laws administered by VA, impaired hearing will be
considered to be a disability when the auditory threshold in
any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
is 40 decibels or greater; or when the auditory threshold for
at least three of the frequencies 500, 1000, 2000, 3000, or
4000 Hertz are 26 or greater; or when speech recognition
scores using the Maryland CNC Test are less than 94 percent.
38 C.F.R. § 3.385.
The Board acknowledges that the veteran's May 2002 discharge
examination revealed hearing loss of 40 decibels at 4000
hertz, but his most recent VA examination revealed hearing
loss of 35 decibels at 4000 hertz, and none of the other
readings were greater than 25 decibels. Moreover, his speech
recognition score was 96 percent. Thus, the veteran does not
currently have a disability due to impaired hearing in his
right ear as defined in 38 C.F.R. § 3.385.
Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability. See 38 U.S.C.A. §§ 1110;
1131. In the absence of proof of present disability there
can be no valid claim. Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328
(1997) (38 U.S.C.A. § 1131 requires existence of present
disability for VA compensation purposes); see also Wamhoff v.
Brown, 8 Vet. App. 517, 521 (1996).
The Board finds that the veteran does not currently suffer
from a hearing loss disability in the right ear as defined in
38 C.F.R. § 3.385, and his claim for service connection for
must be denied. See Sanchez-Benitez v. West, 13 Vet. App.
282, 285 (1999); Brammer, supra.
Increased Rating for Hearing Loss in the Left Ear
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4 (2003). Separate diagnostic codes identify the
various disabilities. The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and the residual conditions in civil
occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1
(2003).
The veteran has appealed the disability rating initially
assigned with the grant of service connection, effective in
June 2002. Because he has appealed the initial rating, the
Board must consider the applicability of staged ratings
covering the time period in which his claim and appeal have
been pending. Fenderson v. West, 12 Vet. App. 119, 126-27
(1999).
Ratings of hearing loss range from noncompensable to 100
percent based on organic impairment of hearing acuity as
measured by the results of speech discrimination tests,
together with the average hearing threshold levels as
measured by pure tone audiometry tests in the frequencies
1000, 2000, 3000, and 4000 cycles per second. To rate the
degree of disability for service-connected hearing loss, the
rating schedule has established eleven auditory acuity
levels, designated from Level I, for essentially normal
acuity, through Level XI, for profound deafness. 38 C.F.R.
§ 4.85(h), Table VI (2003). The assignment of disability
ratings for hearing impairment is derived by a mechanical
application of the rating schedule to the numeric
designations assigned after audiometric evaluations are
rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349
(1992).
The criteria for rating hearing impairment use controlled
speech discrimination tests (Maryland CNC) together with the
results of pure tone audiometry tests. These results are
then charted on Table VI, Table VIA (in exceptional cases as
described in 38 C.F.R. § 4.86), and Table VII as set out in
the Rating Schedule. 38 C.F.R. § 4.85 (2003). In order to
establish entitlement to a compensable rating for hearing
loss, it must be shown that certain minimum levels of the
combination of the percentage of speech discrimination loss
and average pure tone decibel loss are met. An exceptional
pattern of hearing loss occurs when the pure tone thresholds
at 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more,
or when the pure tone threshold is 30 decibels or less at
1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R.
§ 4.86 (2003).
If impaired hearing is service-connected in only one ear, in
order to determine
the percentage evaluation from Table VII, the non-service-
connected ear will be assigned a Roman Numeral designation
for hearing impairment of I. 38 C.F.R.
§ 4.85(f).
The veteran is seeking a compensable rating for his service-
connected hearing loss in the left ear, which is currently
rated under Diagnostic Code 6100.
Application of the May 2003 audiological findings to Table VI
of 38 C.F.R. § 4.85 results in a finding of Level I hearing
for the left ear. This designation corresponds to a zero
percent disability rating pursuant to Table VII. 38 C.F.R. §
4.85, Diagnostic Code 6100 (2003).
Likewise, applying the audiological findings from the
veteran's separation examination in May 2002 also results in
a finding of Level I hearing for the left ear. Specifically,
average puretone threshold on that examination was 36
decibels, with a speech recognition score of 92 percent or
better. Pursuant to Table VI and VII, a zero percent rating
is warranted.
The Board notes that the veteran does not have an exceptional
pattern of hearing loss in the left ear as defined by
38 C.F.R. § 4.86, and this regulation is not for application.
Specifically, the veteran does not have pure tone loss of 55
decibels or more at each of the four frequencies from 1000
through 4000 hertz, nor does he have a decibel loss of 30 or
less at 1000 hertz and 70 decibels or more at 2000 hertz.
Based on the competent evidence of record, the Board
concludes that the scheduler criteria for a compensable
rating have not been met at any time since the veteran's
claim was initiated. See Fenderson v. West, 12 Vet. App.
119, 126 (1999).
In view of the foregoing, the Board finds that the
preponderance of the evidence is against a rating in excess
of zero percent for the veteran's service-connected hearing
loss in the left ear. Thus, the appeal must be denied.
In reaching the conclusions above the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
veteran's claim, that doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1991).
ORDER
Entitlement to service connection for hearing loss in the
right ear is denied.
Entitlement to an increased (compensable) rating for hearing
loss in the left ear is denied.
______________________________________________
KATHY A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs